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Originally Posted by Sheriff Gonna Getcha

Generally speaking, the Equal Protection clause has been used to strike down laws that discriminate on the basis of gender, race, national origin and religion. Laws prohibiting gay marriage probably do not discriminate on the basis of any of those categories.

I say "probably" because some lawyers believe they discriminate on the basis of gender. They argue that laws prohibiting gay marriage deny couples marriage licenses on the basis of their "collective gender" (i.e., he's a man and his partner is a man, therefore they cannot marry) and therefore run afoul of the Equal Protection clause.

Most lawyers, however, do not look agree. Rather, they say the Equal Protection clause applies to individuals and no person is denied a marriage license on the basis of his or her gender. They also advance the somewhat circular argument that the right to marry means the right to have a relationship between two members of the opposite sex recognized by the state. So, laws prohibiting gay "marriage" do not deny homosexuals any recognized/traditional right.

Does it not depend on the standards used for review? Under traditional restrained review I don't see how these laws don't violate the equal protection clause on the basis of economic hardship (i.e. some common law marriage laws do not automatically protect a partner from family members of a deceased partner from laying claim to their collective assets) or on the basis of "invidious discrimination."

The traditional standard of review of equal protection challenges of classifications developed largely though not entirely in the context of economic regulation.

''The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions.'' Justice Frankfurter once wrote. ''They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.'' The mere fact of classification will not void legislation, then, because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations. ''Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.'' Or, more succinctly, ''statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution.'

Under the new active review ban on gay marriage is clear cut violation of the equal protection clause.

When government legislates or acts either on the basis of a ''suspect'' classification or with regard to a ''fundamental'' interest, the traditional standard of equal protection review is abandoned, and the Court exercises a ''strict scrutiny.'' Under this standard government must demonstrate a high degree of need, and usually little or no presumption favoring the classification is to be expected.

Paradigmatic of ''suspect'' categories is classification by race. First in the line of cases dealing with this issue is Korematsu v. United States, concerning the wartime evacuation of Japanese- Americans from the West Coast, in which the Court said that because only a single ethnic-racial group was involved the measure was ''immediately suspect'' and subject to ''rigid scrutiny.'' The school segregation cases purported to enunciate no per se rule, however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking down state laws prohibiting interracial marriage or cohabitation the Court declared that racial classifications ''bear a far heavier burden of justification'' than other classifications and were invalid because no ''overriding statutory purpose'' was shown and they were not necessary to some ''legitimate overriding purpose.'' ''A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.''Remedial racial classifications, that is, the development of ''affirmative action'' or similar programs that classify on the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional review scrutiny, but whether the highest or some intermediate standard is the applicable test is uncertain. A measure which does not draw a distinction explicitly on race but which does draw a line between those who seek to use the law to do away with or modify racial discrimination and those who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect.

Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect, to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review, and to pass on statutory and administrative treatments of illegitimates inconsistently.